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SUPREME COURT OF THE UNITED STATES

No. 92-1239

J. E. B., PETITIONER v. ALABAMA ex rel. T. B.

on writ of certiorari to the court of civil
appeals of alabama

[April 19, 1994]

Justice Blackmun delivered the opinion of the Court.

Although premised on equal protection principles that
apply equally to gender discrimination, all our recent
cases defining the scope of Batson involved alleged racial
discrimination in the exercise of peremptory challenges.
Today we are faced with the question whether the EqualProtection Clause forbids intentional discrimination on
the basis of gender, just as it prohibits discrimination on
the basis of race. We hold that gender, like race, is an
unconstitutional proxy for juror competence and impartiality.

On behalf of relator T. B., the mother of a minor child,
respondent State of Alabama filed a complaint for
paternity and child support against petitioner J.E.B. in
the District Court of Jackson County, Alabama. On
October 21, 1991, the matter was called for trial and
jury selection began. The trial court assembled a panel
of 36 potential jurors, 12 males and 24 females. After
the court excused three jurors for cause, only 10 of the
remaining 33 jurors were male. The State then used 9
of its 10 peremptory strikes to remove male jurors;
petitioner used all but one of his strikes to remove
female jurors. As a result, all the selected jurors were
female.

Before the jury was empaneled, petitioner objected to
the State's peremptory challenges on the ground that
they were exercised against male jurors solely on the
basis of gender, in violation of the Equal Protection
Clause of the Fourteenth Amendment. App. 22.
Petitioner argued that the logic and reasoning of Batson
v. Kentucky, which prohibits peremptory strikes solely on
the basis of race, similarly forbids intentional discrimination on the basis of gender. The court rejected
petitioner's claim and empaneled the all female jury.
App. 23. The jury found petitioner to be the father of
the child and the court entered an order directing him
to pay child support. On post-judgment motion, the
court reaffirmed its ruling that Batson does not extend
to gender based peremptory challenges. App. 33. The
Alabama Court of Civil Appeals affirmed, 606 So. 2d 156
(1992), relying on Alabama precedent, see, e. g., Murphy
v. State, 596 So. 2d 42 (Ala. Crim. App. 1991), cert.denied, __ U. S. __ (1992), and Ex parte Murphy, 596
So. 2d 45 (Ala. 1992). The Supreme Court of Alabama
denied certiorari, No. 1911717 (Ala. Oct. 23, 1992).

We granted certiorari, __ U. S. __ (1993), to resolve a
question that has created a conflict of authority--whether the Equal Protection Clause forbids
peremptory challenges on the basis of gender as well as
on the basis of race.
[n.1]
Today we reaffirm what, by now,
should be axiomatic: Intentional discrimination on thebasis of gender by state actors violates the Equal
Protection Clause, particularly where, as here, the
discrimination serves to ratify and perpetuate invidious,
archaic, and overbroad stereotypes about the relative
abilities of men and women.

Discrimination on the basis of gender in the exercise
of peremptory challenges is a relatively recent phenomenon. Gender based peremptory strikes were hardly
practicable for most of our country's existence, since,
until the 19th century, women were completely excluded
from jury service.
[n.2]
So well entrenched was this exclusion of women that in 1880 this Court, while finding
that the exclusion of African American men from juries
violated the Fourteenth Amendment, expressed no doubt
that a State "may confine the selection [of jurors] to
males." Strauder v. West Virginia, 100 U.S. 303, 310;
see also Fay v. New York, 332 U.S. 261, 289-290
(1947).

Many States continued to exclude women from jury
service well into the present century, despite the fact
that women attained suffrage upon ratification of the
Nineteenth Amendment in 1920.
[n.3]States that didpermit women to serve on juries often erected other barriers, such as registration requirements and automatic
exemptions, designed to deter women from exercising
their right to jury service. See, e. g., Fay v. New York,
332 U. S., at 289 ("[I]n 15 of the 28 states which
permitted women to serve [on juries in 1942], they
might claim exemption because of their sex"); Hoyt v.
Florida, 368 U.S. 57 (1961) (upholding affirmative
registration statute that exempted women from mandatory jury service).

The prohibition of women on juries was derived from
the English common law which, according to Blackstone,
rightfully excluded women from juries under "the
doctrine of propter defectum sexus, literally, the `defect
of sex.' " United States v. DeGross, 960 F. 2d 1433, 1438
(CA9 1992) (en banc), quoting 2 W. Blackstone, Commentaries *362.
[n.4]
In this country, supporters of the
exclusion of women from juries tended to couch their
objections in terms of the ostensible need to protect
women from the ugliness and depravity of trials.
Women were thought to be too fragile and virginal to
withstand the polluted courtroom atmosphere. See
Bailey v. State, 215 Ark. 53, 61, 219 S.W. 2d 424, 428
(1949) ("Criminal court trials often involve testimony ofthe foulest kind, and they sometimes require consideration of indecent conduct, the use of filthy and loathsome words, references to intimate sex relationships, and
other elements that would prove humiliating, embarrassing and degrading to a lady"); In re Goodell, 39 Wis.
232, 245-246 (1875) (endorsing statutory ineligibility of
women for admission to the bar because "[r]everence for
all womanhood would suffer in the public spectacle of
women . . . so engaged"). Bradwell v. State, 16 Wall.
130, 141 (1872) (concurring opinion) ("[T]he civil law, as
well as nature herself, has always recognized a wide
difference in the respective spheres and destinies of man
and woman. Man is, or should be, woman's protector
and defender. The natural and proper timidity and
delicacy which belongs to the female sex evidently unfits
it for many of the occupations of civil life. . . . The
paramount destiny and mission of woman are to fulfil
the noble and benign offices of wife and mother. This
is the law of the Creator"). Cf. Frontiero v. Richardson,
411 U.S. 677, 684 (1973) (plurality opinion) (This "attitude of `romantic paternalism' . . . put women, not
on a pedestal, but in a cage").

This Court in Ballard v. United States, 329 U.S. 187
(1946), first questioned the fundamental fairness of
denying women the right to serve on juries. Relying on
its supervisory powers over the federal courts, it held
that women may not be excluded from the venire in
federal trials in States where women were eligible for
jury service under local law. In response to the argument that women have no superior or unique perspective, such that defendants are denied a fair trial by
virtue of their exclusion from jury panels, the Court
explained:

"It is said . . . that an all male panel drawn from
the various groups within a community will be as
truly representative as if women were included. The
thought is that the factors which tend to influencethe action of women are the same as those which
influence the action of men--personality, background, economic status--and not sex. Yet it is not
enough to say that women when sitting as jurors
neither act nor tend to act as a class. Men likewise
do not act like a class. . . . The truth is that the
two sexes are not fungible; a community made up
exclusively of one is different from a community
composed of both; the subtle interplay of influence
one on the other is among the imponderables. To
insulate the courtroom from either may not in a
given case make an iota of difference. Yet a flavor,
a distinct quality is lost if either sex is excluded."
Id., at 193-194 (footnotes omitted).

Fifteen years later, however, the Court still was
unwilling to translate its appreciation for the value of
women's contribution to civic life into an enforceable
right to equal treatment under state laws governing jury
service. In Hoyt v. Florida, 368 U. S., at 61, the Court
found it reasonable, "despite the enlightened emancipation of women," to exempt women from mandatory jury
service by statute, allowing women to serve on juries
only if they volunteered to serve. The Court justified
the differential exemption policy on the ground that
women, unlike men, occupied a unique position "as the
center of home and family life." Id., at 62.

In 1975, the Court finally repudiated the reasoning of
Hoyt and struck down, under the Sixth Amendment, an
affirmative registration statute nearly identical to the
one at issue in Hoyt. See Taylor v. Louisiana, 419 U.S. 522 (1975).
[n.5]
We explained: "Restricting jury service toonly special groups or excluding identifiable segments
playing major roles in the community cannot be squared
with the constitutional concept of jury trial." Id., at
530. The diverse and representative character of the
jury must be maintained "partly as assurance of a
diffused impartiality and partly because sharing in the
administration of justice is a phase of civic responsibility.' " Id., at 530-531, quoting Thiel v. Southern Pacific
Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting). See also Duren v. Missouri, 439 U.S. 357 (1979).

Taylor relied on Sixth Amendment principles, but the
opinion's approach is consistent with the heightened
equal protection scrutiny afforded gender based classifications. Since Reed v. Reed, 404 U.S. 71 (1971), this
Court consistently has subjected gender based classifications to heightened scrutiny in recognition of the real
danger that government policies that professedly are
based on reasonable considerations in fact may be
reflective of "archaic and overbroad" generalizations
about gender, see Schlesinger v. Ballard, 419 U.S. 498,
506-507 (1975), or based on "outdated misconceptions
concerning the role of females in the home rather than
in the `marketplace and world of ideas.' " Craig v.
Boren, 429 U.S. 190, 198-199 (1976). See also Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 441
(1985) (differential treatment of the sexes "very likely
reflect[s] outmoded notions of the relative capabilities of
men and women").

Despite the heightened scrutiny afforded distinctions
based on gender, respondent argues that gender discrimination in the selection of the petit jury should be
permitted, though discrimination on the basis of race isnot. Respondent suggests that "gender discrimination in
this country . . . has never reached the level of discrimination" against African Americans, and therefore gender
discrimination, unlike racial discrimination, is tolerable
in the courtroom. Brief for Respondent 9.

While the prejudicial attitudes toward women in this
country have not been identical to those held toward racial minorities, the similarities between the experiences
of racial minorities and women, in some contexts, "overpower those differences." Note, Beyond Batson:
Eliminating Gender Based Peremptory Challenges, 105
Harv. L. Rev. 1920, 1921 (1992). As a plurality of this
Court observed in Frontiero v. Richardson, 411 U.S. 677, 685 (1973):

"[T]hroughout much of the 19th century the position
of women in our society was, in many respects,
comparable to that of blacks under the pre-Civil
War slave codes. Neither slaves nor women could
hold office, serve on juries, or bring suit in their
own names, and married women traditionally were
denied the legal capacity to hold or convey property
or to serve as legal guardians of their own children. . . . And although blacks were guaranteed the
right to vote in 1870, women were denied even that
right--which is itself `preservative of other basic
civil and political rights'--until adoption of the Nineteenth Amendment half a century later." (Footnotes
omitted.)

Certainly, with respect to jury service, African Americans
and women share a history of total exclusion, a history
which came to an end for women many years after the
embarrassing chapter in our history came to an end for
African Americans.

We need not determine, however, whether women or
racial minorities have suffered more at the hands of
discriminatory state actors during the decades of ourNation's history. It is necessary only to acknowledge
that "our Nation has had a long and unfortunate history
of sex discrimination," id., at 684, a history which
warrants the heightened scrutiny we afford all gender based classifications today. Under our equal protection
jurisprudence, gender based classifications require "an
exceedingly persuasive justification" in order to survive
constitutional scrutiny. See Personnel Administrator of
Mass. v. Feeney, 442 U.S. 256, 273 (1979). See also
Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982); Kirchberg v. Feenstra, 450 U.S. 455,
461 (1981). Thus, the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State's legitimate interest in achieving
a fair and impartial trial.
[n.6]
In making this assessment,
we do not weigh the value of peremptory challenges as
an institution against our asserted commitment to
eradicate invidious discrimination from the courtroom.
[n.7]
Instead, we consider whether peremptory challenges
based on gender stereotypes provide substantial aid to
a litigant's effort to secure a fair and impartial jury.
[n.8]

Far from proffering an exceptionally persuasive
justification for its gender based peremptory challenges,
respondent maintains that its decision to strike virtually
all the males from the jury in this case "may reasonably
have been based upon the perception, supported by
history, that men otherwise totally qualified to serve
upon a jury might be more sympathetic and receptive to
the arguments of a man alleged in a paternity action to
be the father of an out of wedlock child, while women
equally qualified to serve upon a jury might be more
sympathetic and receptive to the arguments of the
complaining witness who bore the child." Brief for
Respondent 10.
[n.9]

We shall not accept as a defense to gender based
peremptory challenges "the very stereotype the law
condemns." Powers v. Ohio, 499 U.S. 400, 410 (1991).
Respondent's rationale, not unlike those regularly
expressed for gender based strikes, is reminiscent of the
arguments advanced to justify the total exclusion of
women from juries.
[n.10]
Respondent offers virtually no
support for the conclusion that gender alone is an
accurate predictor of juror's attitudes; yet it urges this
Court to condone the same stereotypes that justified the
wholesale exclusion of women from juries and the ballotbox.
[n.11]
Respondent seems to assume that gross generalizations that would be deemed impermissible if made on
the basis of race are somehow permissible when made
on the basis of gender.

Discrimination in jury selection, whether based on race
or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The
litigants are harmed by the risk that the prejudice
which motivated the discriminatory selection of the jury
will infect the entire proceedings. See Edmonson, 500
U. S., at __ (slip op. 13) (discrimination in the courtroom "raises serious questions as to the fairness of theproceedings conducted there"). The community is
harmed by the State's participation in the perpetuation
of invidious group stereotypes and the inevitable loss of
confidence in our judicial system that state sanctioned
discrimination in the courtroom engenders.

When state actors exercise peremptory challenges in
reliance on gender stereotypes, they ratify and reinforce
prejudicial views of the relative abilities of men and
women. Because these stereotypes have wreaked
injustice in so many other spheres of our country's
public life, active discrimination by litigants on the basis
of gender during jury selection "invites cynicism respecting the jury's neutrality and its obligation to adhere to
the law." Powers v. Ohio, 499 U. S., at 412. The
potential for cynicism is particularly acute in cases
where gender related issues are prominent, such as cases
involving rape, sexual harassment, or paternity.
Discriminatory use of peremptory challenges may create
the impression that the judicial system has acquiesced
in suppressing full participation by one gender or that
the "deck has been stacked" in favor of one side. See
id., at 413 ("The verdict will not be accepted or understood [as fair] if the jury is chosen by unlawful means
at the outset").

In recent cases we have emphasized that individual
jurors themselves have a right to nondiscriminatory jury
selection procedures.
[n.12]
See Powers, Edmonson, andMcCollum, all supra. Contrary to respondent's suggestion, this right extends to both men and women. See
Mississippi University for Women v. Hogan, 458 U. S, at
723 (that a state practice "discriminates against males
rather than against females does not exempt it from
scrutiny or reduce the standard of review"); cf. Brief for
Respondent 9 (arguing that men deserve no protection
from gender discrimination in jury selection because they
are not victims of historical discrimination). All persons,
when granted the opportunity to serve on a jury, have
the right not to be excluded summarily because of
discriminatory and stereotypical presumptions that
reflect and reinforce patterns of historical discrimination.
[n.13]
Striking individual jurors on the assumptionthat they hold particular views simply because of their
gender is "practically a brand upon them, affixed by law,
an assertion of their inferiority." Strauder v. West
Virginia, 100 U.S. 303, 308 (1880). It denigrates the
dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation.
[n.14]
The message it sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason
other than gender, are presumed unqualified by state
actors to decide important questions upon which reasonable persons could disagree.
[n.15]

Our conclusion that litigants may not strike potential
jurors solely on the basis of gender does not imply the
elimination of all peremptory challenges. Neither does
it conflict with a State's legitimate interest in using
such challenges in its effort to secure a fair and impartial jury. Parties still may remove jurors whom they
feel might be less acceptable than others on the panel;
gender simply may not serve as a proxy for bias.
Parties may also exercise their peremptory challenges to
remove from the venire any group or class of individuals
normally subject to "rational basis" review. See
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
439-442 (1985); Clark v. Jeter, 486 U.S. 456, 461
(1988). Even strikes based on characteristics that are
disproportionately associated with one gender could be
appropriate, absent a showing of pretext.
[n.16]

The experience in the many jurisdictions that have
barred gender based challenges belies the claim that
litigants and trial courts are incapable of complying
with a rule barring strikes based on gender. See n. 1,
supra (citing state and federal jurisdictions that have
extended Batson to gender).
[n.17]
As with race based
Batson
claims, a party alleging gender discrimination
must make a prima facie showing of intentional discrimination before the party exercising the challenge is
required to explain the basis for the strike. Batson, 476
U. S., at 97. When an explanation is required, it need
not rise to the level of a "for cause" challenge; rather, it
merely must be based on a juror characteristic other
than gender, and the proffered explanation may not be
pretextual. See Hernandez v. New York, 500 U.S. 352
(1991).

Failing to provide jurors the same protection against
gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and
race are overlapping categories, gender can be used as
a pretext for racial discrimination.
[n.18]
Allowing parties
to remove racial minorities from the jury not because of
their race, but because of their gender, contravenes
well established equal protection principles and could
insulate effectively racial discrimination from judicial
scrutiny.

Equal opportunity to participate in the fair administration of justice is fundamental to our democratic
system.
[n.19]
It not only furthers the goals of the jurysystem. It reaffirms the promise of equality under the
law -- that all citizens, regardless of race, ethnicity, or
gender, have the chance to take part directly in our
democracy. Powers v. Ohio, 499 U. S., at 407 ("Indeed,
with the exception of voting, for most citizens the honor
and privilege of jury duty is their most significant opportunity to participate in the democratic process").
When persons are excluded from participation in our
democratic processes solely because of race or gender,
this promise of equality dims, and the integrity of our
judicial system is jeopardized.

In view of these concerns, the Equal Protection Clause
prohibits discrimination in jury selection on the basis of
gender, or on the assumption that an individual will be
biased in a particular case for no reason other than the
fact that the person happens to be a woman or happens
to be a man. As with race, the "core guarantee of equal
protection, ensuring citizens that their State will not
discriminate . . . , would be meaningless were we to
approve the exclusion of jurors on the basis of such
assumptions, which arise solely from the jurors' [gender]." Batson, 476 U. S., at 97-98.

The judgment of the Court of Civil Appeals of Alabama is reversed and the case is remanded to that
court for further proceedings not inconsistent with this
opinion.

2
There was one brief exception. Between 1870 and 1871, women
were permitted to serve on juries in Wyoming Territory. They were
no longer allowed on juries after a new chief justice who disfavored
the practice was appointed in 1871. See Abrahamson, Justice and
Juror, 20 Ga. L. Rev. 257, 263-264 (1986).

3
In 1947, women still had not been granted the right to serve on
juries in 16 States. See Rudolph, Women on the Jury--Voluntary
or Compulsory?, 44 J. Am. Jud. Soc. 206 (1961). As late as 1961,
three States, Alabama, Mississippi, and South Carolina, continued to
exclude women from jury service. See Hoyt v. Florida, 368 U.S. 57, 62 (1961). Indeed, Alabama did not recognize women as a "cognizable group" for jury service purposes until after the 1966
decision in White v. Crook, 251 F. Supp. 401 (MD Ala.) (three judgecourt).

4
In England there was at least one deviation from the general
rule that only males could serve as jurors. If a woman was subject
to capital punishment, or if a widow sought postponement of the
disposition of her husband's estate until birth of a child, a writ de
ventre inspiciendo permitted the use of a jury of matrons to examine
the woman to determine whether she was pregnant. But even when
a jury of matrons was used, the examination took place in the
presence of 12 men, who also composed part of the jury in such
cases. The jury of matrons was used in the United States during
the Colonial period, but apparently fell into disuse when the medical
profession began to perform that function. See Note, Jury Service
for Women, 12 U. Fla. L. Rev. 224-225 (1959).

5Taylor distinguished Hoyt by explaining that that case "did not
involve a defendant's Sixth Amendment right to a jury drawn from
a fair cross section of the community," 419 U. S., at 534. The Court
now, however, has stated that Taylor "in effect" overruled Hoyt. SeePayne v. Tennessee, 501 U. S. __, __, n. 1 (1991).

6
Because we conclude that gender based peremptory challenges are not
substantially related to an important government objective, we once
again need not decide whether classifications based on gender are
inherently suspect. See Mississippi University for Women, 458 U. S., at
724, n. 9; Stanton v. Stanton, 421 U.S. 7, 13 (1975); Harris v. Forklift
Systems, 510 U. S. __, __ (1993) (Ginsburg, J., concurring) ("[I]t remains
an open question whether `classifications based on gender are inherently
suspect' ") (citations omitted).

7
Although peremptory challenges are valuable tools in jury trials,
they "are not constitutionally protected fundamental rights; rather
they are but one state created means to the constitutional end of an
impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. __,
__ (1992) (slip op. 14).

8
Respondent argues that we should recognize a special state
interest in this case: the State's interest in establishing the paternity of a child born out of wedlock. Respondent contends that this
interest justifies the use of gender based peremptory challenges,since illegitimate children are themselves victims of historical
discrimination and entitled to heightened scrutiny under the Equal
Protection Clause.

What respondent fails to recognize is that the only legitimate
interest it could possibly have in the exercise of its peremptory
challenges is securing a fair and impartial jury. See Edmonson v.
Leesville Concrete Co., 500 U.S. 614, __ (1991) (slip op. 5) ("[T]he
sole purpose [of the peremptory challenge] is to permit litigants to
assist the government in the selection of an impartial trier of fact").
This interest does not change with the parties or the causes. The
State's interest in every trial is to see that the proceedings are
carried out in a fair, impartial, and nondiscriminatory manner.

9
Respondent cites one study in support of its quasi empirical claim
that women and men may have different attitudes about certain
issues justifying the use of gender as a proxy for bias. See R.
Hastie, S. Penrod & N. Pennington, Inside the Jury 140 (1983).
The authors conclude: "Neither student nor citizen judgments for
typical criminal case material have revealed differences between
male and female verdict preferences. * * * The picture differs [only]
for rape cases, where female jurors appear to be somewhat more
conviction prone than male jurors". The majority of studies suggest
that gender plays no identifiable role in jurors' attitudes. See, e. g.,
V. Hans & N. Vidmar, Judging the Jury 76 (1986) ("[I]n the majority of studies there are no significant differences in the way men and
women perceive and react to trials; yet a few studies find women
more defense oriented, while still others show women more favorableto the prosecutor"). Even in 1956, before women had a constitutional right to serve on juries, some commentators warned against
using gender as a proxy for bias. See 1 F. Busch, Law and Tactics
in Jury Trials § 143, p. 207 (1949) ("In this age of general and
specialized education, availed of generally by both men and women,
it would appear unsound to base a peremptory challenge in any case
upon the sole ground of sex . . . .").

10
A manual formerly used to instruct prosecutors in Dallas, Texas,
provided the following advice: "I don't like women jurors because I
can't trust them. They do, however, make the best jurors in cases
involving crimes against children. It is possible that their `women's
intuition' can help you if you can't win your case with the facts."
Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory
Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev.
153, 210 (1989). Another widely circulated trial manual speculated:

"If counsel is depending upon a clearly applicable rule of law and
if he wants to avoid a verdict of `intuition' or `sympathy,' if his
verdict in amount is to be proved by clearly demonstrated blackboard figures for example, generally he would want a male
juror. . . .

"[But women] are desired jurors when the plaintiff is a man. A
woman juror may see a man impeached from the beginning of the
case to the end, but there is at least the chance with the woman
juror (particularly if the man happens to be handsome or appealing)
[that] the plaintiff's derelictions in and out of court will be overlooked. A woman is inclined to forgive sin in the opposite sex; but
definitely not her own. . . ." 3 M. Belli, Modern Trials §§ 51.67
and 51.68, pp. 446-447 (2d ed. 1982).

11
Even if a measure of truth can be found in some of the gender
stereotypes used to justify gender based peremptory challenges, that fact
alone cannot support discrimination on the basis of gender in jury
selection. We have made abundantly clear in past cases that gender
classifications that rest on impermissible stereotypes violate the Equal
Protection Clause, even when some statistical support can be conjured
up for the generalization. See, e. g., Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975) (holding unconstitutional a Social Security Act classification authorizing benefits to widows but not to widowers despite the fact
that the justification for the differential treatment was "not entirely
without empirical support"); Craig v. Boren, 429 U.S. 190, 201 (1976)
(invalidating an Oklahoma law that established different drinking ages
for men and women, although the evidence supporting the age differential was "not trivial in a statistical sense"). The generalization advanced
by Alabama in support of its asserted right to discriminate on the basis
of gender is, at the least, overbroad, and serves only to perpetuate the
same "outmoded notions of the relative capabilities of men and women,"
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441 (1985), that
we have invalidated in other contexts. See Frontiero v. Richardson, 411 U.S. 677 (1973); Stanton v. Stanton, 421 U.S. 7 (1975); Craig v. Boren,
429 U.S. 190 (1976); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). The Equal Protection Clause, as interpreted by decisions
of this Court, acknowledges that a shred of truth may be contained in
some stereotypes, but requires that state actors look beyond the surface
before making judgments about people that are likely to stigmatize as
well as to perpetuate historical patterns of discrimination.

12
Given our recent precedent, the doctrinal basis for Justice
Scalia's dissenting opinion is a mystery. Justice Scalia points out
that the discrimination at issue in this case was directed at men,
rather than women, but then acknowledges that the Equal Protection Clause protects both men and women from intentional discrimination on the basis of gender. See post, at 2, citing Mississippi
University for Women v. Hogan, 458 U. S., at 723-724. He also
appears cognizant of the fact that classifications based on gender
must be more than merely rational, see post, at 5-6; they must be
supported by an "exceedingly persuasive justification." Hogan, 458 U. S., at 724. Justice Scalia further admits that the Equal Protection Clause, as interpreted by decisions of this Court, governs the
exercise of peremptory challenges in every trial, and that potential
jurors, as well as litigants, have an equal protection right to nondiscriminatory jury selection procedures. See post, at 3-5, citing
Batson, Powers, Edmonson, and McCollum. Justice Scalia does
not suggest that we overrule these cases, nor does he attempt to
distinguish them. He intimates that discrimination on the basis of
gender in jury selection may be rational, see post, at 2, but offers no "exceedingly persuasive justification" for it. Indeed, Justice Scalia
fails to advance any justification for his apparent belief that the
Equal Protection Clause, while prohibiting discrimination on the
basis of race in the exercise of peremptory challenges, allows discrimination on the basis of gender. His dissenting opinion thus
serves as a tacit admission that, short of overruling a decade of
cases interpreting the Equal Protection Clause, the result we reach
today is doctrinally compelled.

13
It is irrelevant that women, unlike African Americans, are not a
numerical minority and therefore are likely to remain on the jury if
each side uses its peremptory challenges in an equally discriminatory fashion. Cf. United States v. Broussard, 987 F. 2d 215, 220
(CA5 1993) (declining to extend Batson to gender; noting that "[w]omen are not a numerical minority," and therefore are likely to
be represented on juries despite the discriminatory use of peremptory
challenges). Because the right to nondiscriminatory jury selectionprocedures belongs to the potential jurors, as well as to the litigants, the possibility that members of both genders will get on the
jury despite the intentional discrimination is beside the point. The
exclusion of even one juror for impermissible reasons harms that
juror and undermines public confidence in the fairness of the system.

14
The popular refrain is that all peremptory challenges are based
on stereotypes of some kind, expressing various intuitive and frequently erroneous biases. See post, at 6. But where peremptory
challenges are made on the basis of group characteristics other than
race or gender (like occupation, for example), they do not reinforce
the same stereotypes about the group's competence or predispositions
that have been used to prevent them from voting, participating on
juries, pursuing their chosen professions, or otherwise contributing
to civic life. See B. Babcock, A Place in the Palladium, Women's
Rights and Jury Service, 61 U. Cinn. L. Rev. 1139, 1173 (1993).

15
Justice Scalia argues that there is no "discrimination and
dishonor" in being subject to a race or gender based peremptory
strike. Post, at 5. Justice Scalia's argument has been rejected
many times, see, e.g., Powers, 499 U. S., at 410, and we reject it
once again. The only support Justice Scalia offers for his conclusion is the fact that race and gender based peremptory challenges
have a long history in this country. Post, at 4 (discriminatory
peremptory challenges "have co existed with the Equal Protection
Clause for 120 years"); post, at 5 (there was a "106-year interlude
between our holding that exclusion from juries on the basis of race
was unconstitutional, [Strauder, supra], and our holding that peremptory challenges on the basis of race were unconstitutional,
[Batson, supra]"). We do not dispute that this Court long has
tolerated the discriminatory use of peremptory challenges, but this
is not a reason to continue to do so. Many of "our people's traditions," see post, at 8, such as de jure segregation and the total
exclusion of women from juries, are now unconstitutional even
though they once co existed with the Equal Protection Clause.

16
For example, challenging all persons who have had military
experience would disproportionately affect men at this time, while
challenging all persons employed as nurses would disproportionately
affect women. Without a showing of pretext, however, these challenges may well not be unconstitutional, since they are not gender
or race based. See Hernandez v. New York, 500 U.S. 352 (1991).

17
Respondent argues that Alabama's method of jury selection
would make the extension of Batson to gender particularly burdensome. In Alabama, the "struck jury" system is employed, a system
which requires litigants to strike alternately until 12 persons remain, who then constitute the jury. See Ala. Rule Civ. Proc. 47
(1990). Respondent suggests that, in some cases at least, it is
necessary under this system to continue striking persons from the
venire after the litigants no longer have an articulable reason for
doing so. As a result, respondent contends, some litigants may be
unable to come up with gender neutral explanations for their
strikes.

We find it worthy of note that Alabama has managed to maintain
its struck jury system even after the ruling in Batson, despite the
fact that there are counties in Alabama that are predominately
African American. In those counties, it presumably would be as
difficult to come up with race neutral explanations for peremptory
strikes as it would be to advance gender neutral explanations. No
doubt the voir dire process aids litigants in their ability to articulate
race neutral explanations for their peremptory challenges. The same
should be true for gender. Regardless, a State's choice of jury selection methods cannot insulate it from the strictures of the Equal
Protection Clause. Alabama is free to adopt whatever jury selection
procedures it chooses so long as they do not violate the Constitution.

18
The temptation to use gender as a pretext for racial discrimination may explain why the majority of the lower court decisions
extending Batson to gender involve the use of peremptory challenges
to remove minority women. All four of the gender based peremptory
cases to reach the federal courts of appeals and cited in n. 1, supra,
involved the striking of minority women.

"The American tradition of trial by jury, considered in connection
with either criminal or civil proceedings, necessarily contemplates an
impartial jury drawn from a cross section of the community. . . .
This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and
geographical groups of the community; frequently such complete
representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic andintentional exclusion of any of these groups. Recognition must be
given to the fact that those eligible for jury service are to be found
in every stratum of society. Jury competence is an individual rather
than a group or class matter. That fact lies at the very heart of
the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic
ideals of trial by jury." Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946).